Printed by the WTO Secretariat A PPELLATE BODY ANNUAL REPORT FOR 2003
TABLE OF CONTENTS
I. COMPOSITION OF THE APPELLATE BODY...... 1
II. APPEALS FILED...... 3
III. APPELLATE BODY REPORTS...... 5
IV. SUBJECT MATTER OF APPEALS...... 7
V. PARTICIPANTS AND THIRD PARTICIPANTS...... 9
VI. WORKING PROCEDURES FOR APPELLATE REVIEW ...... 12
VII. ARBITRATIONS UNDER ARTICLE 21.3(c) OF THE DSU...... 13
VIII. TECHNICAL ASSISTANCE...... 14
IX. OTHER DEVELOPMENTS...... 15
ANNEX 1 BIOGRAPHIES OF APPELLATE BODY MEMBERS ...... 16
ANNEX 2 APPEALS FILED BETWEEN 1996 AND 2003 ...... 21
ANNEX 3 SUMMARIES OF APPELLATE BODY REPORTS CIRCULATED IN 2003 ...... 22
ANNEX 4 WTO AGREEMENTS COVERED IN APPELLATE BODY REPORTS CIRCULATED THROUGH 2003...... 25
ANNEX 5 FREQUENCY OF PARTICIPATION BY WTO MEMBERS IN APPEALS: 1996–2003...... 25
ANNEX 6 AMENDMENTS TO THE WORKING PROCEDURES FOR APPELLATE REVIEW ...... 25
ANNEX 7 ARBITRATIONS CONDUCTED UNDER ARTICLE 21.3(c) OF THE DSU: 1997–2003...... 25
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TABLE OF ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description 2003 TA Plan Coordinated WTO Secretariat Annual Technical Assistance Plan 2003 Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ATC Agreement on Textiles and Clothing DSB Dispute Settlement Body DSU Understanding on Rules and Procedures Governing the Settlement of Disputes GATS General Agreement on Trade in Services GATT 1994 General Agreement on Tariffs and Trade 1994 Import Licensing Agreement Agreement on Import Licensing Procedures SCM Agreement Agreement on Subsidies and Countervailing Measures SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures TBT Agreement Agreement on Technical Barriers to Trade TRIMs Agreement Agreement on Trade-Related Investment Measures TRIPS Agreement Agreement on Trade-Related Aspects of Intellectual Property Rights Working Procedures Working Procedures for Appellate Review WTO World Trade Organization WTO Agreement Marrakesh Agreement Establishing the World Trade Organization
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WORLD TRADE ORGANIZATION APPELLATE BODY
ANNUAL REPORT FOR 2003
I
COMPOSITION OF THE APPELLATE BODY
The Appellate Body is composed of seven Members appointed to four-year terms by the WTO's Dispute Settlement Body (the "DSB"). Throughout most of 2003, the Appellate Body had the following membership:
Name Nationality Term of Office
James Bacchus – Chairman United States 1999–2003 1995–1999 Georges Michel Abi-Saab Egypt 2000–2004 Luiz Olavo Baptista Brazil 2001–2005 Arumugamangalam Venkatachalam Ganesan India 2000–2004 John S. Lockhart Australia 2001–2005 Giorgio Sacerdoti Italy 2001–2005 Yasuhei Taniguchi Japan 2000–2003
Mr. James Bacchus' second and final term of office expired on 10 December 2003. On 7 November 2003, the DSB appointed Ms. Merit E. Janow, of the United States, to the Appellate Body.1 Ms. Janow is a Professor in the Practice of Economic Law and International Affairs at the School of International and Public Affairs of Columbia University. From 1997 to 2000, while at Columbia University, Ms. Janow served as Executive Director of the first international competition policy advisory committee to the Attorney General and the Assistant Attorney General for Antitrust of the United States Department of Justice. Ms. Janow's term commenced on 11 December 2003 and will expire on 10 December 2007.
1 WT/DSB/M/157.
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On 7 November, the DSB also appointed Mr. Abi-Saab, Mr. Ganesan and Mr. Taniguchi to second four-year terms.2 Mr. Taniguchi's second term commenced on 11 December 2003 and will expire on 10 December 2007. The second terms of Mr. Abi-Saab and Mr. Ganesan will commence on 1 June 2004 and expire on 31 May 2008.
According to Rule 5 of the Working Procedures for Appellate Review (the "Working Procedures"), a Chairman of the Appellate Body shall be elected by the Appellate Body Members. The Chairman is responsible for the overall direction of Appellate Body business. The Appellate Body elected Mr. Bacchus to a second one-year term as Chairman on 15 December 2002.3 Upon the expiration of Mr. Bacchus' term of office, the Appellate Body elected Mr. Abi-Saab as Chairman.4
Brief biographies of the current Members of the Appellate Body are provided in Annex 1.
The Appellate Body receives legal and administrative support from the Appellate Body Secretariat, in accordance with Article 17.7 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU"). The Director of the Appellate Body Secretariat is Ms. Valerie Hughes, who heads a team of ten lawyers, one administrative assistant and three support staff.5
2 WT/DSB/M/157. 3 WT/DSB/30. 4 WT/DSB/36. 5 A brief biography of Ms. Hughes may also be found in Annex 1.
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II
APPEALS FILED
Six appeals were filed during 2003. The following table provides a list of the Notices of Appeal filed during the year, the WTO document numbers, the dates of filing, and the names of the WTO Members that filed the Notices.
TABLE 1
Matter Short Title WT/DS Number WTO Member that Date of Notice of Filed Notice of Appeal Appeal
European Communities – EC – Bed Linen WT/DS141/16 India 8 January 2003 Anti-Dumping Duties on Imports of (Article 21.5 – India ) Cotton-Type Bed Linen from India, Recourse to Article 21.5 of the DSU by India
European Communities – EC – Tube or Pipe WT/DS219/7 Brazil 23 April 2003 Anti-Dumping Duties on Malleable Fittings Cast Iron Tube or Pipe Fittings from Brazil
United States – Definitive Safeguard US – Steel Safeguards WT/DS248/17 United States 11 August 2003 Measures on Imports of Certain Steel WT/DS249/11 Products WT/DS251/12 WT/DS252/10 WT/DS253/10 WT/DS254/10 WT/DS258/14 WT/DS259/13
Japan – Measures Affecting the Japan – Apples WT/DS245/5 Japan 28 August 2003 Importation of Apples
United States – Sunset Review of US – Corrosion WT/DS244/7 Japan 15 September 2003 Anti-Dumping Duties on Resistant Steel Sunset Corrosion- Resistant Carbon Steel Review Flat Products from Japan
United States – Final Countervailing US – Softwood WT/DS257/6 United States 21 October 2003 Duty Determination with Respect to Lumber IV Certain Softwood Lumber from Canada
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Three of the six appeals filed during 2003 included multiple appeals such that, in addition to the WTO Members that filed the Notices of Appeal, other WTO Members participated as other appellants pursuant to Rule 23 of the Working Procedures.6
Statistical information on the number of appeals filed, by year, since 1995 can be found in Annex 2.
6 The appeals that included multiple appeals and the WTO Members that filed an other appellant's submission were: United States – Definitive Safeguard Measures on Imports of Certain Steel Products (Brazil, China, the European Communities, Japan, Korea, New Zealand, Norway and Switzerland); Japan – Measures Affecting the Importation of Apples (United States); and United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada (Canada).
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III
APPELLATE BODY REPORTS
The Appellate Body circulated six Reports during 2003. One of the Reports related to a Notice of Appeal filed in 2002.7 The other five Reports related to Notices filed during 2003.
The following table provides a list of the six Appellate Body Reports circulated during 2003. Annex 3 contains summaries of the Appellate Body's findings and conclusions in these six Reports.
TABLE 2
Matter Short Title WT/DS Number Circulation Date DSB Adoption Date
United States – Continued US – Offset Act WT/DS217/AB/R 16 January 2003 27 January 2003 Dumping and Subsidy Offset Act (Byrd Amendment ) WT/DS234/AB/R of 2000
European Communities – EC – Bed Linen WT/DS141/AB/RW 8 April 2003 24 April 2003 Anti-Dumping Duties on Imports (Article 21.5 – India ) of Cotton-Type Bed Linen from India, Recourse to Article 21.5 of the DSU by India
European Communities – EC – Tube or Pipe WT/DS219/AB/R 22 July 2003 18 August 2003 Anti-Dumping Duties on Fittings Malleable Cast Iron Tube or Pipe Fittings from Brazil
United States – Definitive US – Steel WT/DS248/AB/R 10 November 2003 10 December 2003 Safeguard Measures on Imports Safeguards WT/DS249/AB/R of Certain Steel Products WT/DS251/AB/R WT/DS252/AB/R WT/DS253/AB/R WT/DS254/AB/R WT/DS258/AB/R WT/DS259/AB/R
Japan – Measures Affecting the Japan – Apples WT/DS245/AB/R 26 November 2003 10 December 2003 Importation of Apples
7 The Notice of Appeal in US – Offset Act (Byrd Amendment) was filed on 18 October 2002, WT/DS217/8, WT/DS234/16.
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TABLE 2 (CONT’D)
Matter Short Title WT/DS Number Circulation Date DSB Adoption Date
United States – Sunset Review US – Corrosion WT/DS244/AB/R 15 December 2003 9 January 2004 of Anti-Dumping Duties on Resistant Steel Corrosion-Resistant Carbon Sunset Review Steel Flat Products from Japan
The total number of Appellate Body Reports circulated from the establishment of the Appellate Body until 31 December 2003 is 59.
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IV
SUBJECT MATTER OF APPEALS
The following table provides information about the WTO Agreements covered in the Appellate Body Reports circulated during 2003.
TABLE 3
Matter Short Title WTO Agreements Covered
United States – Continued Dumping and Subsidy Offset US – Offset Act (Byrd Amendment ) Anti-Dumping Agreement Act of 2000 SCM Agreement DSU WTO Agreement
European Communities – Anti-Dumping Duties on EC – Bed Linen (Article 21.5 – India ) Anti-Dumping Agreement Imports of Cotton-Type Bed Linen from India, Recourse DSU to Article 21.5 of the DSU by India
European Communities – Anti-Dumping Duties on EC – Tube or Pipe Fittings Anti-Dumping Agreement Malleable Cast Iron Tube or Pipe Fittings from Brazil GATT 1994
United States – Definitive Safeguard Measures on US – Steel Safeguards Agreement on Safeguards Imports of Certain Steel Products GATT 1994 DSU
Japan – Measures Affecting the Importation of Apples Japan – Apples SPS Agreement DSU
United States – Sunset Review of Anti-Dumping Duties US – Corrosion-Resistant Steel Anti-Dumping Agreement on Corrosion-Resistant Carbon Steel Flat Products Sunset Review WTO Agreement from Japan
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As indicated above, five of the Reports circulated in 2003 relate to trade remedies. Three of these Reports relate to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement "), one Report deals with both the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures (the "SCM Agreement "), and the fifth Report deals with the Agreement on Safeguards. One other Report examines issues related to the Agreement on the Application of Sanitary and Phytosanitary Measures (the "SPS Agreement ").
In addition, four of the Reports consider issues related to the DSU, two Reports deal with the General Agreement on Tariffs and Trade 1994 (the "GATT 1994"), and two others cover issues related to the Marrakesh Agreement Establishing the World Trade Organization (the "WTO Agreement ").
Information on the WTO Agreements covered in Appellate Body Reports circulated prior to 2003 can be found in Annex 4.
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V
PARTICIPANTS AND THIRD PARTICIPANTS
The following table lists the WTO Members that participated as appellant, appellee, or third participant in appeals in which an Appellate Body Report was circulated during 2003.
TABLE 4
Matter Appellant Appellee Third Participant
United States – Continued United States Australia Argentina Dumping and Subsidy Offset Brazil Costa Rica Act of 2000 Canada Hong Kong, China Chile Israel European Communities Norway India Indonesia Japan Korea Mexico Thailand
European Communities – India European Communities Japan Anti-Dumping Duties on Imports Korea of Cotton-Type Bed Linen from United States India, Recourse to Article 21.5 of the DSU by India
European Communities – Brazil European Communities Chile Anti-Dumping Duties on Japan Malleable Cast Iron Tube or Mexico Pipe Fittings from Brazil United States
United States – Definitive United States United States Canada Safeguard Measures on Imports Brazil Brazil Cuba of Certain Steel Products China China Mexico European Communities European Communities Separate Customs Japan Japan Territory of Taiwan, Korea Korea Penghu, Kinmen, and New Zealand New Zealand Matsu Norway Norway Thailand Switzerland Switzerland Turkey Venezuela
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TABLE 4 (CONT’D)
Matter Appellant Appellee Third Participant
Japan – Measures Affecting the Japan Japan Australia Importation of Apples United States United States Brazil European Communities New Zealand Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu
United States – Sunset Review Japan United States Brazil of Anti-Dumping Duties on Chile Corrosion-Resistant Carbon European Communities Steel Flat Products from Japan India Korea Norway
A total of 24 WTO Members appeared at least once before the Appellate Body during 2003 as an appellant, an appellee, or a third participant. Of these, 16 were developing country WTO Members and 8 were developed country WTO Members.
The following table indicates the number of times each of these 24 WTO Members appeared as an appellant, an appellee, or a third participant in 2003.
TABLE 5
WTO Member Appellant Appellee Third Participant Total8 Argentina – – 1 1 Australia – 1 1 2 Brazil 2 2 2 6 Canada – 1 1 2 Chile – 1 2 3 China 1 1 – 2 Costa Rica – – 1 1 Cuba – – 1 1 European Communities 1 4 2 7 Hong Kong, China – – 1 1 India 1 1 1 3 Indonesia – 1 – 1 Israel – – 1 1
8 Given that Rule 23 of the Working Procedures allows for multiple appeals, a WTO Member may make two appearances before the Appellate Body in the same dispute, both as appellant and as appellee. Thus, the total number of appearances may exceed the number of appeals within which each WTO Member participated.
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TABLE 5 (CONT’D)
WTO Member Appellant Appellee Third Participant Total Japan 3 3 2 8 Korea 1 2 2 5 Mexico – 1 2 3 New Zealand 1 1 1 3 Norway 1 1 2 4
Separate Customs Territory of –– 2 2 Taiwan, Penghu, Kinmen, and Matsu Switzerland 1 1 – 2
Thailand – 1 1 2 Turkey – – 1 1
United States 3 3 2 8 Venezuela – – 1 1
Of the 70 appearances made by WTO Members before the Appellate Body during 2003, 36 were by developed country WTO Members and 34 by developing country WTO Members. Developed country WTO Members made 10 appearances as appellant, 15 as appellee, and 11 as third participant. Developing country WTO Members made 5 appearances as appellant, 10 as appellee, and 19 as third participant.
Annex 5 sets out additional statistical information on appearances before the Appellate Body by WTO Members between 1996 and 2003.
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VI
WORKING PROCEDURES FOR APPELLATE REVIEW
Amendments to the Working Procedures came into effect on 1 May 2003.9 A consolidated version of the Working Procedures incorporating these amendments was published on 1 May 2003 as WTO document WT/AB/WP/7.
The amendments were intended to facilitate third party participation in appellate procedures. The experience of the first six years of operation of the Appellate Body revealed an unintended rigidity in the Working Procedures with respect to third party participation in the oral hearing. Specifically, the Working Procedures did not contemplate participation in the oral hearing by third parties that had not filed a written submission within 25 days of the filing of the Notice of Appeal. Many WTO Members had expressed the view that the opportunity to attend the oral hearing and be heard by the Appellate Body should not depend on the filing of a written submission. The Appellate Body's practice of allowing "passive participation" at oral hearings went some way towards meeting these concerns, although certain WTO Members felt that more flexibility was desirable.10 The issue of third party participation in the oral hearing arose regularly in appeals in recent years, and several WTO Members continued to press for elimination of the rule requiring the filing of a written submission.
The Appellate Body agreed with WTO Members that a more flexible approach was desirable and sought to respond to Members' requests for change through specifically targeted amendments. These amendments were principally to Rules 24 and 27 of the Working Procedures. In addition, consequential changes were made to Rules 1, 16, 18, 19 and 28, and to Annex I of the Working Procedures. The amendments to the Working Procedures that came into effect on 1 May 2003 are reproduced in Annex 6.
This is the fourth time that the Working Procedures have been amended since they were originally adopted in 1995. The first two changes related to the term of office of the Chairman of the Appellate Body11, while the third also related to enhancement of third party participation at the oral hearing.12
9 WT/AB/WP/6. The amendments were adopted pursuant to Article 17.9 of the DSU and Rule 32(2) of the Working Procedures. In accordance with Article 17.9 of the DSU, the Appellate Body held consultations with the Chairman of DSB and the Director-General of the WTO before the amendments came into effect. The Appellate Body also received comments from WTO Members, through the DSB Chairman, and took these into account in preparing the final version of the amendments. 10 WT/AB/WP/5. 11 WT/AB/WP/2 and WT/AB/WP/4. 12 These amendments applied provisionally until the most recent amendments came into effect on 1 May 2003, WT/AB/WP/5.
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VII
ARBITRATIONS UNDER ARTICLE 21.3(c) OF THE DSU
Appellate Body Members have been called upon to determine the "reasonable period of time" for the implementation by a WTO Member of the recommendations and rulings of the DSB, through binding arbitration under Article 21.3(c) of the DSU. The parties to the arbitration select the arbitrator or, if they cannot agree on an arbitrator, the Director-General of the WTO appoints the arbitrator. In carrying out arbitrations under Article 21.3(c), Appellate Body Members act in an individual capacity.
Two Article 21.3(c) arbitrations were carried out by Appellate Body Members during 2003. Mr. John Lockhart was chosen by the parties as arbitrator in Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products.13 The reasonable period of time awarded in that arbitration was 14 months. The arbitration in United States – Continued Dumping and Subsidy Offset Act of 2000 was carried out by Mr. Yasuhei Taniguchi, who was selected as arbitrator by the Director-General of the WTO.14 In that arbitration, the reasonable period of time awarded was 11 months.
Appellate Body Members have acted as arbitrator in a total of 17 arbitrations under Article 21.3(c). Additional information about these arbitrations can be found in Annex 7.
13 Award of the Arbitrator, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products – Arbitration under Article 21.3(c) of the DSU ("Chile – Price Band System "), WT/DS207/13, 17 March 2003. 14 Award of the Arbitrator, United States – Continued Dumping and Subsidy Offset Act of 2000 – Arbitration under Article 21.3(c) of the DSU ("US – Offset Act (Byrd Amendment )"), WT/DS217/14, WT/DS234/22, 13 June 2003.
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VIII
TECHNICAL ASSISTANCE
The Appellate Body Secretariat made a significant contribution to the Coordinated WTO Secretariat Annual Technical Assistance Plan 2003 (the "2003 TA Plan"), particularly to activities related to dispute settlement.15 Appellate Body Secretariat staff participated in seven regional workshops on dispute settlement that were held in Africa, Asia, Central and Eastern Europe, Latin America and the Caribbean, and the Middle East. In addition, the Appellate Body Secretariat participated in 15 other technical assistance missions falling under the 2003 TA Plan, and provided resource persons for 2 Specialized Dispute Settlement Seminars and 3 Trade Policy Courses held in Geneva.
15 WT/COMTD/W/104/Rev.2.
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IX
OTHER DEVELOPMENTS
WTO website: On 1 October 2003, a new section dedicated to the Appellate Body was incorporated in the WTO's website. The purpose of this new section is to serve as a tool for officials from WTO Members and other practitioners by providing explanations on appellate procedures and up-to-date information about the Appellate Body's caseload. The new section includes: an explanation of appellate procedures; information on the composition of Appellate Body; a list of current appeals; a table with Appellate Body Reports circulated to date, with an indication of the WTO Agreements covered in each; a news section; and statistics about appeals in the WTO. The address of this new section is:
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Any inquiries should be directed to:
Appellate Body Secretariat World Trade Organization rue de Lausanne 154 1211 Geneva, Switzerland email: [email protected]
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ANNEX 1
BIOGRAPHIES OF APPELLATE BODY MEMBERS
Georges Michel Abi-Saab (Egypt) (2000–2008)
Born in Egypt on 9 June 1933, Georges Michel Abi-Saab is Honorary Professor of International Law at the Graduate Institute of International Studies in Geneva (having taught there from 1963 to 2000), Honorary Professor at Cairo University’s Faculty of Law, and a Member of the Institute of International Law.
Professor Abi-Saab served as consultant to the Secretary-General of the United Nations for the preparation of two reports on "Respect of Human Rights in Armed Conflicts" (1969 and 1970), and for the report on "Progressive Development of Principles and Norms of International Law Relating to the New International Economic Order" (1984). He represented Egypt in the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law (1974 to 1977), and acted as advocate and Counsel for several governments in cases before the International Court of Justice (ICJ) as well as in international arbitrations. He has also served twice as judge ad hoc on the ICJ and as Judge on the Appeals Chamber of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. He is a Commissioner of the United Nations Compensation Commission and a Member of the Administrative Tribunal of the International Monetary Fund and of various international arbitral tribunals.
Professor Abi-Saab is the author of numerous books and articles, including: "Les exceptions préliminaires dans la procédure de la Cour internationale: Etude des notions fondamentales de procédure et des moyens de leur mise en oeuvre" (Paris, Pedone, 1967); "International Crises and the Role of Law: The United Nations Operation in Congo 1960–1964" (Oxford University Press, 1978); "The Concept of International Organization" (as editor) (Paris, UNESCO, 1981; French edition, 1980); and of two courses at the Hague Academy of International Law: "Wars of National Liberation in the Geneva Conventions and Protocols" (Recueil des cours, vol. 165 (1979–IV)) and the "General Course of Public International Law" (in French) (Recueil des cours, vol. 207 (1987–VII)).
Luiz Olavo Baptista (Brazil) (2001–2005)
Born in Brazil in 1938, Luiz Olavo Baptista is currently Professor of International Trade Law at the University of São Paulo Law School. He has been a Member of the Permanent Court of Arbitration at The Hague since 1996, and of the International Chamber of Commerce (ICC) Institute for International Trade Practices and of its Commission on Trade and Investment Policy, since 1999. In addition, he has been one of the arbitrators designated under Mercosur's Protocol of Brasilia since 1993. Professor Baptista is also senior partner at the L.O. Baptista Law Firm, in São Paulo, Brazil, where he concentrates his practice on corporate law, arbitration and international litigation. He has been practicing law for almost 40 years advising governments, international organizations and large corporations in Brazil and in other jurisdictions. Professor Baptista has been an arbitrator at the United Nations Compensation Commission (E4A Panel), in several private commercial disputes and State-investor proceedings, as well as in disputes under Mercosur's Protocol of Brasilia. In addition, he has participated as a legal advisor in diverse projects sponsored by the World Bank, the United Nations Conference on Trade and Development (UNCTAD), the United Nations Centre on Transnational Corporations (UNCTC), and the
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United Nations Development Programme (UNDP). He obtained his law degree from the Catholic University of São Paulo, pursued post-graduate studies at Columbia University Law School and The Hague Academy of International Law, and received a Ph.D in International Law from the University of Paris II. He was Visiting Professor at the University of Michigan (Ann Arbor) from 1978 to 1979, and at the University of Paris I and the University of Paris X between 1996 and 2000. Professor Baptista has published extensively on various issues in Brazil and abroad.
Arumugamangalam Venkatachalam Ganesan (India) (2000–2008)
Born in Tirunelveli, Tamil Nadu, India on 7 June 1935, Arumugamangalam Venkatachalam Ganesan was a distinguished civil servant of India. He was appointed to the Indian Administrative Service, a premier civil service of India, in May 1959, and served in that service until June 1993. In a career spanning over 34 years, he has held a number of high level assignments, including Joint Secretary (Investment), Department of Economic Affairs, Government of India (1977–1980); Inter-Regional Adviser, United Nations Centre on Transnational Corporations (UNCTC), United Nations Headquarters, New York (1980–1985); Additional Secretary, Department of Industrial Development, Government of India (1986–1989); Chief Negotiator of India for the Uruguay Round of Multilateral Trade Negotiations and Special Secretary, Ministry of Commerce, Government of India (1989–1990); Civil Aviation Secretary of the Government of India (1990–1991); and Commerce Secretary of the Government of India (1991–1993). He represented India on numerous occasions in bilateral, regional, and multilateral negotiations in the areas of international trade, investment, and intellectual property rights. Between 1989 and 1993, he represented India at the various stages of the Uruguay Round of Multilateral Trade Negotiations.
After his retirement from civil service, Mr. Ganesan served as an expert and consultant to various agencies of the United Nations system, including the United Nations Conference on Trade and Development (UNCTAD), the United Nations Industrial Development Organization (UNIDO) and the United Nations Development Programme (UNDP), in the field of international trade, investment and intellectual property rights. He has also spoken extensively to the business, managerial, scientific and academic communities in India on the scope and substance of the Uruguay Round negotiations and Agreements and their implications. Until his appointment to the Appellate Body of the WTO in 2000, he was a Member of the Government of India’s High Level Trade Advisory Committee on Multilateral Trade Negotiations. He was also a Member of the Permanent Group of Experts under the Agreement on Subsidies and Countervailing Measures, and a Member of a dispute settlement panel of the WTO in 1999– 2000 in the United States – Section 110(5) of the US Copyright Act case.
Mr. Ganesan has written numerous newspaper articles and monographs dealing with various aspects of the Uruguay Round Agreements and their implications. He is also the author of many papers on trade, investment and intellectual property issues for UNCTAD and UNIDO, and has contributed to books published in India on matters concerning the Uruguay Round, including intellectual property rights issues.
Mr. Ganesan holds M.A. and M.Sc. degrees from the University of Madras, India.
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Merit E. Janow (United States) (2003–2007)
Born in the United States on 13 May 1958, Ms. Merit E. Janow has been Professor in the Practice of International Economic Law and International Affairs at the School of International and Public Affairs of Columbia University since 1994. She teaches advanced law courses in international trade and comparative antitrust law along with courses on international trade policy. From 1997 to 2000, while at Columbia University, Ms. Janow served as Executive Director of the first international competition policy advisory committee to the Attorney General and the Assistant Attorney General for Antitrust of the United States Department of Justice. Before joining Columbia's faculty in 1994, Ms. Janow was Deputy Assistant United States Trade Representative for Japan and China (1990–93), and worked as a corporate lawyer specializing in mergers and acquisitions with the law firm Skadden, Arps, Slate, Meagher & Flom in New York (1988–90). Ms. Janow is the author of several books and has contributed chapters to more than a dozen books. She grew up in Tokyo, Japan, and speaks Japanese. Ms. Janow served as a WTO panelist from September 2001 to May 2002 in the dispute European Communities – Trade Description of Sardines (WT/DS231).
John S. Lockhart (Australia) (2001–2005)
Born in Australia on 2 October 1935, John S. Lockhart was Executive Director at the Asian Development Bank (ADB) in the Philippines from July 1999 to 2002, working closely with developing member countries on the development of programmes directed to poverty alleviation through the promotion of economic growth. His other duties for the ADB included the development of law reform programmes and assisting in the provision of advice on legal questions, notably the interpretation of the ADB's Charter, international treaties, and United Nations instruments.
Prior to joining the ADB, Mr. Lockhart served as Judicial Reform Specialist at the World Bank focusing on strengthening legal and judicial institutions and working closely with developing countries and economies in transition in their projects of judicial and legal reform.
Since graduating in arts and law from the University of Sydney in 1958, Mr. Lockhart's professional experience has included Judge, Federal Court of Australia (1978–1999); President of the Australian Competition Tribunal (1982-1999); Deputy President of the Australian Copyright Tribunal (1981–1997); and Queen's Counsel, Australia and the United Kingdom Privy Council (1973–1978). He was appointed an Officer of the Order of Australia in 1994 for services to the law, education and the arts.
Giorgio Sacerdoti (European Communities – Italy) (2001–2005)
Born on 2 March 1943, Giorgio Sacerdoti has been Professor of International Law and European Law at Bocconi University, Milan, Italy, since 1986.
Professor Sacerdoti has held various posts in the public sector, including Vice-Chairman of the Organisation for Economic Cooperation and Development (OECD) Working Group on Bribery in International Business Transactions until 2001, where he was one of the drafters of the "Anticorruption Convention of 1997". He has acted as consultant to the Council of Europe, the United Nations Conference on Trade and Development (UNCTAD), and the World Bank in matters related to foreign investments, trade, bribery, development, and good governance. In the private sector, he has often served as arbitrator in international commercial disputes and at the International Centre for Settlement of Investment Disputes (ICSID).
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Professor Sacerdoti has published extensively on international trade law, investments, international contracts and arbitration.
After graduating from the University of Milan with a law degree summa cum laude in 1965, Professor Sacerdoti gained a Master in Comparative Law from Columbia University Law School as a Fulbright Fellow in 1967. He was admitted to the Milan bar in 1969 and to the Supreme Court of Italy in 1979. He is a Member of the Committee on International Trade Law of the International Law Association.
Yasuhei Taniguchi (Japan) (2000–2007)
Born in Japan on 26 December 1934, Yasuhei Taniguchi is currently Professor of Law at Tokyo Keizai University, and Attorney at Law in Tokyo. He obtained a law degree from Kyoto University in 1957 and was fully qualified as a jurist in 1959. His graduate degrees include LL.M., University of California at Berkeley (1963) and J.S.D., Cornell University (1964). He taught at Kyoto University for 39 years and has been Professor Emeritus since 1998. He also has taught as Visiting Professor of Law in the United States (University of Michigan, University of California at Berkeley, Duke University, Stanford University, Georgetown University, Harvard University, New York University, and University of Richmond), in Australia (Murdoch University and University of Melbourne), at the University of Hong Kong, and at the University of Paris XII.
Professor Taniguchi is former president of the Japanese Association of Civil Procedure and currently vice-president of the International Association of Procedural Law. He is affiliated with various academic societies and arbitral organizations as arbitrator, including the International Council for Commercial Arbitration; the International Law Association; the American Law Institute; the Japan Commercial Arbitration Association; the Chartered Institute of Arbitrators; the American Arbitration Association; the Hong Kong International Arbitration Center; the Chinese International Economic and Trade Arbitration Commission; the Korean Commercial Arbitration Board; and the Cairo Regional Centre of Commercial Arbitration. He has also been an active arbitrator in the International Chamber of Commerce (ICC) Court of International Arbitration.
Professor Taniguchi has written numerous books and articles in the fields of civil procedure, arbitration, insolvency, the judicial system and legal profession, as well as comparative and international law related to these fields. His publications have been published in Japanese, Chinese, English, French, Italian, German, and Portuguese.
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DIRECTOR OF THE APPELLATE BODY SECRETARIAT
Valerie Hughes
Ms. Hughes has been Director of the Appellate Body Secretariat since 2001. Previously, she was with the law firm of Ogilvy Renault in Ottawa, Canada. She also spent nineteen years with the Government of Canada, during which she held various positions, including Director of the Trade Law Division of the Department of Foreign Affairs and International Trade, Director of the General Legal Services Division of the Department of Finance, and Senior Counsel of the International Law Section of the Department of Justice. Ms. Hughes has served as counsel for Canada before numerous international courts and tribunals, including the International Court of Justice, panels established under the North American Free Trade Agreement, WTO panels and the WTO Appellate Body.
20 A PPELLATE BODY ANNUAL REPORT FOR 2003
ANNEX 2
APPEALS FILED BETWEEN 1996 AND 200316
Year Number of Notices of Appeal Filed 1996 4 1997 617 1998 8 1999 918 2000 1319 2001 920 2002 721 2003 622 Total 62
16 There were no appeals filed in 1995. 17 This number includes two Notices of Appeal that were circulated at the same time in related matters, counted separately: EC – Hormones (Canada); EC – Hormones (US). A single Appellate Body Report was subsequently circulated in relation to these appeals. 18 This number excludes one Notice of Appeal that was withdrawn at the request of the United States, which subsequently filed another Notice of Appeal in relation to the same Panel Report: US – FSC. 19 This number includes two Notices of Appeal that were circulated at the same time in related matters, counted separately: US – 1916 Act (EC); US – 1916 Act (Japan). A single Appellate Body Report was subsequently circulated in relation to these appeals. 20 This number excludes one Notice of Appeal that was withdrawn at the request of the United States, which subsequently filed another Notice of Appeal in relation to the same Panel Report: US – Line Pipe. 21 This number includes one Notice of Appeal in relation to which the appeal was subsequently withdrawn: India – Autos. It excludes one Notice of Appeal that was withdrawn at the request of the European Communities, which subsequently filed a new Notice of Appeal in relation to the same Panel Report: EC – Sardines. 22 This number excludes one Notice of Appeal that was withdrawn at the request of the United States, which subsequently filed a new Notice of Appeal in relation to the same Panel Report: US - Softwood Lumber IV.
21 A PPELLATE BODY ANNUAL REPORT FOR 2003
ANNEX 3
SUMMARIES OF APPELLATE BODY REPORTS CIRCULATED IN 2003
This annex contains summaries of the findings and conclusions contained in the Appellate Body Reports circulated in 2003. These summaries are derived from the WTO Annual Report 2004 and are intended solely for information. They do not constitute an authoritative interpretation of the relevant decisions.
Appellate Body Report, United States – Continued Dumping and Subsidy Offset Act of 2000 ("US – Offset Act (Byrd Amendment )"), WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003..
The Appellate Body upheld the Panel's finding that the United States Continued Dumping and Subsidy Offset Act of 2000 is a non-permissible specific action against dumping or a subsidy, contrary to Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of the SCM Agreement. The Appellate Body reversed the Panel's finding that the Continued Dumping and Subsidy Offset Act of 2000 is inconsistent with Article 5.4 of the Anti-Dumping Agreement and Article 11.4 of the SCM Agreement. The Appellate Body also rejected the Panel's conclusion that the United States "may be regarded as not having acted in good faith" with respect to its obligations under those provisions.
Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, Recourse to Article 21.5 of the DSU by India ("EC – Bed Linen (Article 21.5 – India ) "), WT/DS141/AB/RW, adopted 24 April 2003..
The Appellate Body upheld the Panel's finding that India's claim under Article 3.5 of the Anti-Dumping Agreement was not properly before the Panel. The Appellate Body reversed the Panel's finding that the European Communities did not act inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement. The Appellate Body found, instead, that, in respect of import volumes attributable to exports of producers that were not examined individually in the investigation, the European Communities had failed to determine the "volume of dumped imports" on the basis of "positive evidence" and an "objective examination", as required by Articles 3.1 and 3.2. The Appellate Body found that the Panel had properly discharged its duties under Article 17.6 of the Anti-Dumping Agreement and Article 11 of the DSU.
Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil ("EC – Tube or Pipe Fittings "), WT/DS219/AB/R, adopted 18 August 2003..
The Appellate Body upheld the Panel's findings that the European Communities did not act inconsistently with Article VI:2 of the GATT 1994 or with Articles 1, 2.2.2, 3.1, 3.2, 3.3, 3.4, or 3.5 of the Anti-Dumping Agreement. In the course of upholding these findings, the Appellate Body rejected the claim that the Panel, contrary to its obligation under Article 17.6(i) of the Anti-Dumping Agreement, failed to assess properly the facts of the matter before it when admitting into evidence the document referred to as Exhibit EC-12. The Appellate Body reversed the Panel's finding with respect to one issue. The Appellate Body found, in contrast to the Panel, that the European Communities acted inconsistently with Articles 6.2 and 6.4 of the Anti-Dumping Agreement by failing to disclose to interested parties during the
22 A PPELLATE BODY ANNUAL REPORT FOR 2003
anti-dumping investigation certain information related to the evaluation of the state of the domestic industry, which was contained in document Exhibit EC-12.
Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Certain Steel Products ("US – Steel Safeguards "), WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003. .
The Appellate Body upheld the Panel's ultimate conclusions that each of the ten safeguard measures at issue was inconsistent with the United States' obligations under Article XIX:1(a) of the GATT 1994 and the Agreement on Safeguards. The Appellate Body reversed the Panel's findings that the United States had failed to provide a reasoned and adequate explanation on the existence of "increased imports", as well as on the existence of a "causal link" between increased imports and serious injury, for two of the ten safeguard measures. Ultimately, however, these two measures were found to be inconsistent with the Agreement on Safeguards and the GATT 1994 on other grounds. The Appellate Body neither upheld nor reversed the Panel's findings on the causal link "between" increased imports and serious injury for seven of the ten safeguard measures, as it was unnecessary to do so to resolve this dispute.
Appellate Body Report, Japan – Measures Affecting the Importation of Apples ("Japan – Apples "), WT/DS245/AB/R, adopted 10 December 2003.
The Appellate Body upheld the Panel's findings that Japan's phytosanitary measure at issue was inconsistent with Japan's obligations under Articles 2.2, 5.7, and 5.1 of the SPS Agreement. The Appellate Body also found that the Panel properly discharged its duties under Article 11 of the DSU in the Panel's assessment of the facts of the case. In addition, the Appellate Body found that the Panel did have the "authority" to make rulings covering all apple fruit that could possibly be exported from the United States to Japan, including apples other than "mature, symptomless" apples.
Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion- Resistant Carbon Steel Flat Products from Japan ("US – Corrosion-Resistant Steel Sunset Review "), WT/DS244/AB/R, adopted 9 January 2004.
The Appellate Body upheld three findings but reversed four of the Panel's legal findings. The Appellate Body reversed the Panel's findings that the Sunset Policy Bulletin is not a mandatory legal instrument and thus is not a measure that is "challengeable", as such, under the Anti-Dumping Agreement or the WTO Agreement. However, the Appellate Body did not find any of the provisions of the Sunset Policy Bulletin inconsistent with the Anti-Dumping Agreement or the WTO Agreement. Although its analysis of Japan's claims differed from that of the Panel in important respects, the Appellate Body did not make any finding that the United States had acted inconsistently with its obligations under the Anti- Dumping Agreement or the WTO Agreement. In relation to certain of Japan's claims, the Appellate Body indicated that it did not have a sufficient factual basis to complete the analysis.
23 A PPELLATE BODY ANNUAL REPORT FOR 2003 0 0 0 2 1 1 1 1 6 S a f e - g u a r d s 0 1 0 0 1 0 0 0 2 G A T S E D 0 1 0 0 1 0 1 0 3 R I P S T 3 0 1 0 2 5 1 3 1 1 S C M S C I R U L A T R T s i n g 0 1 1 0 1 0 0 0 3 I m p o r t L i c e n 0 0 1 0 2 4 0 4 1 D Y R E P O n t i - D u m p g A n 2 3 o i t E B O 0 0 0 0 1 0 0 0 1 T R I M S r m a o 4 0 0 0 0 0 1 1 0 2 B T T c a l I n f i U G H 2 0 3 t s i a t 0 2 0 0 0 1 0 0 3 A N E X A T C S t H R O T 0 0 2 0 0 0 0 1 3 I . S P E R D I N A P L T 0 0 1 1 2 1 3 0 8 V A g r i - c u l t r e 4 S C O 3 2 5 4 7 6 4 3 2 3 1 9 G A T E N T 7 W T O 1 9 5 . A g r e m n t d i n a l s f i e 0 2 1 3 1 7 0 4 1 6 1 5 1 4 2 e 3 1 A G R E M D S U O a p o n
r e W T 6 7 8 9 0 1 2 3 w e r e 1 9 1 9 1 9 1 9 2 0 2 0 2 0 2 0 T o t a l e Y e a r o f C i r c u l a t o n T h 2 3
24 A PPELLATE BODY ANNUAL REPORT FOR 2003
WTO AGREEMENTS COVERED IN APPELLATE BODY REPORTS CIRCULATED THROUGH 200324
II. Detailed Information By Year of Circulation
1996
Matter Short Title WT/DS Number WTO Agreements Covered
United States – Standards for US – Gasoline WT/DS2/AB/R GATT 1994 Reformulated and Conventional Gasoline
Japan – Taxes on Alcoholic Japan – Alcoholic WT/DS8/AB/R GATT 1994 Beverages Beverages II WT/DS10/AB/R WT/DS11/AB/R
1997
Matter Short Title WT/DS Number WTO Agreements Covered
United States – Restrictions on US – Underwear WT/DS24/AB/R ATC Imports of Cotton and Man-made GATT 1994 Fibre Underwear
Brazil – Measures Affecting Brazil – Desiccated Coconut WT/DS22/AB/R SCM Agreement Desiccated Coconut GATT 1994
United States – Measure Affecting US – Wool Shirts and Blouses WT/DS33/AB/R ATC Imports of Woven Wool Shirts and GATT 1994 Blouse from India WTO Agreement DSU
Canada – Certain Measures Canada – Periodicals WT/DS31/AB/R GATT 1994 Concerning Periodicals DSU
European Communities – Regime EC – Bananas III WT/DS27/AB/R GATT 1994 for the Importation, Sale and Import Licensing Agreement Distribution of Bananas GATS
India – Patent Protection for India – Patents (US) WT/DS50/AB/R TRIPS Agreement Pharmaceutical and Agricultural Chemical Products
24 There were no appeals filed in 1995.
25 A PPELLATE BODY ANNUAL REPORT FOR 2003
1998
Matter Short Title WT/DS Number WTO Agreements Covered
EC Measures Concerning Meat and EC – Hormones WT/DS26/AB/R SPS Agreement Meat Products (Hormones) WT/DS48/AB/R DSU
Argentina – Measures Affecting Argentina – Textiles and WT/DS56/AB/R GATT 1994 Imports of Footwear, Textiles, Apparel Apparel and Other Items
European Communities – Customs EC – Computer Equipment WT/DS62/AB/R WTO Agreement Classification of Certain Computer WT/DS67/AB/R GATT 1994 Equipment WT/DS68/AB/R
European Communities – Measures EC – Poultry WT/DS69/AB/R Agreement on Agriculture Affecting the Importation of Certain Import Licensing Agreement Poultry Products GATT 1994 DSU
United States – Import Prohibition US – Shrimp WT/DS58/AB/R GATT 1994 of Certain Shrimp and Shrimp Products
Australia – Measures Affecting Australia – Salmon WT/DS18/AB/R SPS Agreement Importation of Salmon
Guatemala – Anti-Dumping Guatemala – Cement I WT/DS60/AB/R Anti-Dumping Agreement Investigation Regarding Portland DSU Cement from Mexico
1999
Matter Short Title WT/DS Number WTO Agreements Covered
Korea – Taxes on Alcoholic Korea – Alcoholic Beverages WT/DS75/AB/R GATT 1994 Beverages WT/DS84/AB/R DSU
Japan – Measures Affecting Japan – Agricultural WT/DS76/AB/R SPS Agreement Agricultural Products Products II DSU
Brazil – Export Financing Brazil – Aircraft WT/DS46/AB/R SCM Agreement Programme for Aircraft
Canada – Measures Affecting the Canada – Aircraft WT/DS70/AB/R SCM Agreement Export of Civilian Aircraft DSU
India – Quantitative Restrictions on India – Quantitative WT/DS90/AB/R GATT 1994 Imports of Agricultural, Textile and Restrictions DSU Industrial Products
Canada – Measures Affecting the Canada – Dairy WT/DS103/AB/R Agreement on Agriculture Importation of Milk and the WT/DS113/AB/R GATT 1994 Exportation of Dairy Products
Turkey – Restrictions on Imports of Turkey – Textiles WT/DS34/AB/R GATT 1994 Textile and Clothing Products
26 A PPELLATE BODY ANNUAL REPORT FOR 2003
1999 (CONT’D)
Matter Short Title WT/DS Number WTO Agreements Covered
Chile – Taxes on Alcoholic Chile – Alcoholic Beverages WT/DS87/AB/R GATT 1994 Beverages WT/DS110/AB/R DSU
Argentina – Safeguard Measures Argentina – Footwear (EC) WT/DS121/AB/R Agreement on Safeguards on Imports of Footwear GATT 1994 DSU
Korea – Definitive Safeguard Korea – Dairy WT/DS98/AB/R Agreement on Safeguards Measure on Imports of Certain GATT 1994 Dairy Products DSU
2000
Matter Short Title WT/DS Number WTO Agreements Covered
United States – Tax Treatment for US – FSC WT/DS108/AB/R SCM Agreement "Foreign Sales Corporations" Agreement on Agriculture
United States – Imposition of US – Lead and Bismuth II WT/DS138/AB/R SCM Agreement Countervailing Duties on Certain Anti-Dumping Agreement Hot-Rolled Lead and Bismuth GATT 1994 Carbon Steel Products Originating DSU in the United Kingdom
Canada – Certain Measures Canada – Autos WT/DS139/AB/R TRIMs Agreement Affecting the Automotive Industry WT/DS142/AB/R GATS SCM Agreement GATT 1994
Brazil – Export Financing Brazil – Aircraft WT/DS46/AB/RW SCM Agreement Programme for Aircraft, Recourse (Article 21.5 – Canada) by Canada to Article 21.5 of the DSU
Canada – Measures Affecting the Canada – Aircraft WT/DS70/AB/RW SCM Agreement Export of Civilian Aircraft, (Article 21.5 – Brazil) Recourse by Brazil to Article 21.5 of the DSU
United States – Anti-Dumping Act US – 1916 Act WT/DS136/AB/R Anti-Dumping Agreement of 1916, Complaint by the WT/DS162/AB/R GATT 1994 European Communities, Complaint WTO Agreement by Japan DSU
Canada – Term of Patent Canada – Patent Term WT/DS170/AB/R TRIPS Agreement Protection
Korea – Measures Affecting Korea – Various Measures on WT/DS161/AB/R Agreement on Agriculture Imports of Fresh, Chilled and Beef WT/DS169/AB/R Import Licensing Agreement Frozen Beef GATT 1994
27 A PPELLATE BODY ANNUAL REPORT FOR 2003
2000 (CONT’D)
Matter Short Title WT/DS Number WTO Agreements Covered
United States – Import Measures US – Certain EC Products WT/DS165/AB/R GATT 1994 on Certain Products from the DSU European Communities
United States – Definitive US – Wheat Gluten WT/DS166/AB/R Agreement on Safeguards Safeguard Measures on Imports of GATT 1994 Wheat Gluten from the European DSU Communities
2001
Matter Short Title WT/DS Number WTO Agreements Covered
European Communities – EC – Bed Linen WT/DS141/AB/R Anti-Dumping Agreement Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India
Thailand – Anti-Dumping Duties on Thailand – H-Beams WT/DS122/AB/R Anti-Dumping Agreement Angles, Shapes and Sections of DSU Iron or Non-Alloy Steel and H-Beams from Poland
European Communities – EC – Asbestos WT/DS135/AB/R GATT 1994 Measures Affecting Asbestos and TBT Agreement Asbestos-Containing Products DSU
United States – Safeguard US – Lamb WT/DS177/AB/R Agreement on Safeguards Measures on Imports of Fresh, WT/DS178/AB/R GATT 1994 Chilled or Frozen Lamb Meat from DSU New Zealand and Australia
United States – Anti-Dumping US – Hot-Rolled Steel WT/DS184/AB/R Anti-Dumping Agreement Measures on Certain Hot-Rolled WTO Agreement Steel Products from Japan DSU
United States – Transitional US – Cotton Yarn WT/DS192/AB/R ATC Safeguard Measure on Combed GATT 1994 Cotton Yarn from Pakistan DSU
United States – Import Prohibition US – Shrimp WT/DS58/AB/RW GATT 1994 of Certain Shrimp and Shrimp (Article 21.5 – Malaysia) Products, Recourse to Article 21.5 of the DSU by Malaysia
28 A PPELLATE BODY ANNUAL REPORT FOR 2003
2001 (CONT’D)
Matter Short Title WT/DS Number WTO Agreements Covered
Mexico – Anti-Dumping Mexico – Corn Syrup WT/DS132/AB/RW Anti-Dumping Agreement Investigation of High Fructose Corn (Article 21.5 – US) DSU Syrup (HFCS) from the United States, Recourse to Article 21.5 of the DSU by the United States
Canada – Measures Affecting the Canada – Dairy (Article 21.5 – WT/DS103/AB/RW Agreement on Agriculture Importation of Milk and the New Zealand and US) WT/DS113/AB/RW SCM Agreement Exportation of Dairy Products, Recourse to Article 21.5 of the DSU by New Zealand and the United States
2002
Matter Short Title WT/DS Number WTO Agreements Covered
United States – Section 211 US – Section 211 WT/DS176/AB/R TRIPS Agreement Omnibus Appropriations Act of Appropriations Act DSU 1998
United States – Tax Treatment for US – FSC WT/DS108/AB/RW SCM Agreement "Foreign Sales Corporations", (Article 21.5 – EC) Agreement on Agriculture Recourse to Article 21.5 of the GATT 1994 DSU by the European DSU Communities
United States – Definitive US – Line Pipe WT/DS202/AB/R Agreement on Safeguards Safeguard Measures on Imports of GATT 1994 Circular Welded Carbon Quality Line Pipe from Korea
India – Measures Affecting the India – Autos WT/DS146/AB/R India withdrew its appeal the day Automotive Sector WT/DS175/AB/R before the oral hearing was scheduled to proceed.
Chile – Price Band System and Chile – Price Band System WT/DS207/AB/R Agreement on Agriculture Safeguard Measures Relating to GATT 1994 Certain Agricultural Products DSU
European Communities – Trade EC – Sardines WT/DS231/AB/R TBT Agreement Description of Sardines DSU
United States – Countervailing US – Carbon Steel WT/DS213/AB/R SCM Agreement Duties on Certain Corrosion- DSU Resistant Carbon Steel Flat Products from Germany
29 A PPELLATE BODY ANNUAL REPORT FOR 2003
2002 (CONT’D)
Matter Short Title WT/DS Number WTO Agreements Covered
United States – Countervailing US – Countervailing Measures WT/DS212/AB/R WTO Agreement Measures Concerning Certain on Certain EC Products SCM Agreement Products from the European Communities
Canada – Measures Affecting the Canada – Dairy (Article 21.5 – WT/DS103/AB/RW2 Agreement on Agriculture Importation of Milk and the New Zealand and US II) WT/DS113/AB/RW2 Exportation of Dairy Products, Second Recourse to Article 21.5 of the DSU by New Zealand and the United States
2003
Matter Short Title WT/DS Number WTO Agreements Covered
United States – Continued Dumping US – Offset Act (Byrd WT/DS217/AB/R Anti-Dumping Agreement and Subsidy Offset Act of 2000 Amendment ) WT/DS234/AB/R SCM Agreement DSU WTO Agreement
European Communities – EC – Bed Linen WT/DS141/AB/RW Anti-Dumping Agreement Anti-Dumping Duties on Imports of (Article 21.5 – India ) DSU Cotton-Type Bed Linen from India, Recourse to Article 21.5 of the DSU by India
European Communities – EC – Tube or Pipe Fittings WT/DS219/AB/R Anti-Dumping Agreement Anti-Dumping Duties on Malleable GATT 1994 Cast Iron Tube or Pipe Fittings from Brazil
United States – Definitive Safeguard US – Steel Safeguards WT/DS248/AB/R Agreement on Safeguards Measures on Imports of Certain Steel WT/DS249/AB/R GATT 1994 Products WT/DS251/AB/R DSU WT/DS252/AB/R WT/DS253/AB/R WT/DS254/AB/R WT/DS258/AB/R WT/DS259/AB/R
Japan – Measures Affecting the Japan – Apples WT/DS245/AB/R SPS Agreement Importation of Apples DSU
United States – Sunset Review of US – Corrosion-Resistant WT/DS244/AB/R Anti-Dumping Agreement Anti-Dumping Duties on Corrosion- Steel Sunset Review WTO Agreement Resistant Carbon Steel Flat Products from Japan
30 A PPELLATE BODY ANNUAL REPORT FOR 2003
ANNEX 5
FREQUENCY OF PARTICIPATION BY WTO MEMBERS IN APPEALS: 1996–200325
I. Statistical Information
WTO Member Appellant Appellee Third Participant Total Argentina 2 2 2 6 Australia 2 1 9 15 Belize – – 1 1 Brazil 8 7 8 23 Cameroon – – 1 1 Canada 11 10 8 29 Chile 2 1 4 7 China 1 1 – 2 Colombia – – 2 2 Costa Rica 1 – 2 3 Côte d'Ivoire – – 1 1 Cuba – – 1 1 Dominica – – 2 2 Dominican Republic – – 1 1 Ecuador 1 1 4 6 Egypt – – 1 1 European Communities 18 24 24 66 Ghana – – 1 1 Grenada – – 1 1 Guatemala 2 1 – 3 Honduras 1 1 – 2 Hong Kong – – 4 4 India 5 4 9 18 Indonesia – 1 1 2 Israel – – 1 1 Jamaica – – 2 2 Japan 8 8 13 29 Korea 5 4 5 14 Malaysia 1 1 – 2 Mexico 2 3 10 15 New Zealand 2 5 4 11
25 There were no appeals filed in 1995.
31 A PPELLATE BODY ANNUAL REPORT FOR 2003
WTO Member Appellant Appellee Third Participant Total Nicaragua – – 1 1 Nigeria – – 1 1 Norway 1 1 6 8 Pakistan – 2 – 2 Paraguay – – 1 1 Peru – 1 – 1 Philippines 1 1 1 3 Poland – 1 – 1 Senegal – – 1 1 Separate Customs Territory of Taiwan, –– 2 2 Penghu, Kinmen, and Matsu St. Lucia – – 2 2 St. Vincent and the Grenadines – – 1 1 Suriname – – 1 1 Switzerland 1 1 – 2 Thailand 1 2 3 6 Turkey 1 – 1 2 United States 23 33 19 75 Venezuela – 1 3 4 Total 100 121 165 386
32 A PPELLATE BODY ANNUAL REPORT FOR 2003
FREQUENCY OF PARTICIPATION BY WTO MEMBERS IN APPEALS: 1996–200326
II. Detailed Information by Year27
1996
Matter Appellant Appellee Third Participant
United States – Standards for Reformulated United States Brazil European Communities and Conventional Gasoline Venezuela Norway
Japan – Taxes on Alcoholic Beverages Japan Canada None United States European Communities Japan United States
1997
Matter Appellant Appellee Third Participant
United States – Restrictions on Imports of Costa Rica United States India Cotton and Man-made Fibre Underwear
Brazil – Measures Affecting Desiccated Brazil Brazil European Communities Coconut Philippines Philippines United States
United States – Measure Affecting Imports of India United States None Woven Wool Shirts and Blouses from India
Canada – Certain Measures Concerning Canada Canada None Periodicals United States United States
European Communities – Regime for the Ecuador Ecuador Belize Importation, Sale and Distribution of Bananas European Communities European Communities Cameroon Guatemala Guatemala Colombia Honduras Honduras Costa Rica Mexico Mexico Côte d'Ivoire United States United States Dominica Dominican Republic Ghana Grenada Jamaica Japan Nicaragua Saint Lucia St. Vincent and the Grenadines Senegal Suriname Venezuela
India – Patent Protection for Pharmaceutical India United States European Communities and Agricultural Chemical Products
26 There were no appeals filed in 1995. 27 Appellate Body Reports are classified according to the year of circulation.
33 A PPELLATE BODY ANNUAL REPORT FOR 2003
1998
Matter Appellant Appellee Third Participant
European Communities – Measures Canada Canada Australia Concerning Meat and Meat Products European Communities European Communities New Zealand (Hormones) United States United States Norway
Argentina – Measures Affecting Imports of Argentina United States European Communities Footwear, Textiles, Apparel and Other Items
European Communities – Customs European Communities United States Japan Classification of Certain Computer Equipment
European Communities – Measures Affecting Brazil Brazil Thailand the Importation of Certain Poultry Products European Communities European Communities United States
United States – Import Prohibition of Certain United States India Australia Shrimp and Shrimp Products Malaysia Ecuador Pakistan European Communities Thailand Hong Kong, China Mexico Nigeria
Australia – Measures Affecting Importation of Australia Australia European Communities Salmon Canada Canada India Norway United States
Guatemala – Anti-Dumping Investigation Guatemala Mexico United States Regarding Portland Cement from Mexico
1999
Matter Appellant Appellee Third Participant
Korea – Taxes on Alcoholic Beverages Korea European Communities Mexico United States
Japan – Measures Affecting Agricultural Japan Japan Brazil Products United States United States European Communities
Brazil – Export Financing Programme for Brazil Brazil European Communities Aircraft Canada Canada United States
Canada – Measures Affecting the Export of Brazil Brazil European Communities Civilian Aircraft Canada Canada United States
India – Quantitative Restrictions on Imports of India United States None Agricultural, Textile and Industrial Products
34 A PPELLATE BODY ANNUAL REPORT FOR 2003
1999 (CONT’D)
Matter Appellant Appellee Third Participant
Canada – Measures Affecting the Importation Canada New Zealand None of Milk and the Exportation of Dairy Products United States
Turkey – Restrictions on Imports of Textile Turkey India Hong Kong, China and Clothing Products Japan Philippines
Chile – Taxes on Alcoholic Beverages Chile European Communities Mexico United States
Argentina – Safeguard Measures on Imports Argentina Argentina Indonesia of Footwear European Communities European Communities United States
Korea – Definitive Safeguard Measure on Korea Korea United States Imports of Certain Dairy Products European Communities European Communities
2000
Matter Appellant Appellee Third Participant
United States – Definitive Safeguard European Communities European Communities Australia Measures on Imports of Wheat Gluten from United States United States Canada the European Communities New Zealand
United States – Import Measures on Certain European Communities European Communities Dominica Products from the European Communities United States United States Ecuador India Jamaica Japan St. Lucia
Korea – Measures Affecting Imports of Fresh, Korea Australia Canada Chilled and Frozen Beef United States New Zealand
Canada – Term of Patent Protection Canada United States None
United States – Anti-Dumping Act of 1916, European Communities European Communities European Communities Complaint by the European Communities, Japan Japan (in complaint Complaint by Japan United States United States brought by Japan) India Japan (in complaint brought by European Communities) Mexico
Canada – Measures Affecting the Export of Brazil Canada European Communities Civilian Aircraft, Recourse by Brazil to Article United States 21.5 of the DSU
Brazil – Export Financing Programme for Brazil Canada European Communities Aircraft, Recourse by Canada to Article 21.5 of United States the DSU
35 A PPELLATE BODY ANNUAL REPORT FOR 2003
2000 (CONT’D)
Matter Appellant Appellee Third Participant
Canada – Certain Measures Affecting the Canada Canada Korea Automotive Industry European Communities European Communities United States Japan Japan
United States – Imposition of Countervailing United States European Communities Brazil Duties on Certain Hot-Rolled Lead and Mexico Bismuth Carbon Steel Products Originating in the United Kingdom
United States – Tax Treatment for “Foreign European Communities European Communities Canada Sales Corporations” United States United States Japan
2001
Matter Appellant Appellee Third Participant
European Communities – Anti-Dumping European Communities India Egypt Duties on Imports of Cotton-Type Bed Linen Japan from India United States
European Communities – Measures Affecting Canada Canada Brazil Asbestos and Asbestos-Containing Products European Communities European Communities United States
Thailand – Anti-Dumping Duties on Angles, Thailand Poland European Communities Shapes and Sections of Iron or Non-Alloy Japan Steel and H-Beams from Poland United States
United States – Safeguard Measures on Australia Australia European Communities Imports of Fresh, Chilled or Frozen Lamb New Zealand New Zealand Meat from New Zealand and Australia United States United States
United States – Anti-Dumping Measures on Japan Japan Brazil Certain Hot-Rolled Steel Products from Japan United States United States Canada Chile European Communities Korea
United States – Transitional Safeguard United States Pakistan European Communities Measure on Combed Cotton Yarn from India Pakistan
United States – Import Prohibition of Certain Malaysia United States Australia Shrimp and Shrimp Products, Recourse to European Communities Article 21.5 of the DSU by Malaysia Hong Kong, China India Japan Mexico Thailand
36 A PPELLATE BODY ANNUAL REPORT FOR 2003
2001 (CONT’D)
Matter Appellant Appellee Third Participant
Mexico – Anti-Dumping Investigation of High Mexico United States European Communities Fructose Corn Syrup (HFCS) from the United States, Recourse to Article 21.5 of the DSU by the United States
Canada – Measures Affecting the Importation Canada New Zealand European Communities of Milk and the Exportation of Dairy Products, United States Recourse to Article 21.5 of the DSU by New Zealand and the United States
2002
Matter Appellant Appellee Third Participant
United States – Section 211 Omnibus European Communities European Communities None Appropriations Act of 1998 United States United States
United States – Tax Treatment for “Foreign European Communities European Communities Australia Sales Corporations”, Recourse to Article 21.5 United States United States Canada of the DSU by the European Communities India Japan
United States – Definitive Safeguard Korea Korea Australia Measures on Imports of Circular Welded United States United States Canada Carbon Quality Line Pipe from Korea European Communities Japan Mexico
India – Measures Affecting the Automotive India European Communities Korea Sector United States (India withdrew its appeal the day before the oral hearing was scheduled to proceed)
Chile – Price Band System and Safeguard Chile Argentina Australia Measures Relating to Certain Agricultural Brazil Products Colombia European Communities Ecuador Paraguay United States Venezuela
European Communities – European Communities Peru Canada Trade Description of Sardines Chile Ecuador United States Venezuela
United States – Countervailing European Communities European Communities Japan Duties on Certain Corrosion-Resistant Carbon United States United States Norway Steel Flat Products from Germany
37 A PPELLATE BODY ANNUAL REPORT FOR 2003
2002 (CONT’D)
Matter Appellant Appellee Third Participant
United States – Countervailing Measures United States European Communities Brazil Concerning Certain Products from the India European Communities Mexico
Canada – Measures Affecting the Importation Canada New Zealand Argentina of Milk and the Exportation of Dairy Products, United States Australia Second Recourse to Article 21.5 of the DSU European Communities by New Zealand and the United States
2003
Matter Appellant Appellee Third Participant
United States – Continued Dumping and United States Australia Argentina Subsidy Offset Act of 2000 Brazil Costa Rica Canada Hong Kong, China Chile Israel European Communities Norway India Indonesia Japan Korea Mexico Thailand European Communities – Anti-Dumping India European Communities Japan Duties on Imports of Cotton-Type Bed Linen Korea from India, Recourse to Article 21.5 of the United States DSU by India European Communities – Anti-Dumping Brazil European Communities Chile Duties on Malleable Cast Iron Tube or Pipe Japan Fittings from Brazil Mexico United States United States – Definitive Safeguard United States United States Canada Measures on Imports of Certain Steel Brazil Brazil Cuba Products China China Mexico European Communities European Communities Separate Customs Japan Japan Territory of Taiwan, Korea Korea Penghu, Kinmen, and New Zealand New Zealand Matsu Norway Norway Thailand Switzerland Switzerland Turkey Venezuela Japan – Measures Affecting the Importation of Japan Japan Australia Apples United States United States Brazil European Communities New Zealand Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu
38 A PPELLATE BODY ANNUAL REPORT FOR 2003
2003 (CONT’D)
Matter Appellant Appellee Third Participant
United States – Sunset Review of Japan United States Brazil Anti-Dumping Duties on Corrosion-Resistant Chile Carbon Steel Flat Products from Japan European Communities India Korea Norway
39 A PPELLATE BODY ANNUAL REPORT FOR 2003
ANNEX 6
AMENDMENTS TO THE WORKING PROCEDURES FOR APPELLATE REVIEW
The amendments to the Working Procedures that came into effect on 1 May 2003 are reproduced below:
1. The definition of "third participant" in Rule 1 shall be deleted and replaced by the following:
"third participant"
means any third party that has filed a written submission pursuant to Rule 24(1); or any third party that appears at the oral hearing, whether or not it makes an oral statement at that hearing.
2. Rule 24 shall be deleted and replaced by the following:
Third Participants
24. (1) Any third party may file a written submission containing the grounds and legal arguments in support of its position. Such submission shall be filed within 25 days after the date of the filing of the Notice of Appeal.
(2) A third party not filing a written submission shall, within the same period of 25 days, notify the Secretariat in writing if it intends to appear at the oral hearing, and, if so, whether it intends to make an oral statement.
(3) Third participants are encouraged to file written submissions to facilitate their positions being taken fully into account by the division hearing the appeal and in order that participants and other third participants will have notice of positions to be taken at the oral hearing.
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(4) Any third party that has neither filed a written submission pursuant to paragraph (1), nor notified the Secretariat pursuant to paragraph (2), may notify the Secretariat that it intends to appear at the oral hearing, and may request to make an oral statement at the hearing. Such notifications and requests should be notified to the Secretariat in writing at the earliest opportunity.
3. Paragraph 3 of Rule 27 shall be deleted and replaced by the following:
(3) (a) Any third party that has filed a submission pursuant to Rule 24(1), or has notified the Secretariat pursuant to Rule 24(2) that it intends to appear at the oral hearing, may appear at the oral hearing, make an oral statement at the hearing, and respond to questions posed by the division.
(b) Any third party that has notified the Secretariat pursuant to Rule 24(4) that it intends to appear at the oral hearing may appear at the oral hearing.
(c) Any third party that has made a request pursuant to Rule 24(4) may, at the discretion of the division hearing the appeal, taking into account the requirements of due process, make an oral statement at the hearing, and respond to questions posed by the division.
4. Paragraph 1 of Rule 16 shall be deleted and replaced by the following:
(1) In the interests of fairness and orderly procedure in the conduct of an appeal, where a procedural question arises that is not covered by these Rules, a division may adopt an appropriate procedure for the purposes of that appeal only, provided that it is not inconsistent with the DSU, the other covered agreements and these Rules. Where such a procedure is adopted, the division shall immediately notify the parties to the dispute, participants, third parties
41 A PPELLATE BODY ANNUAL REPORT FOR 2003
and third participants as well as the other Members of the Appellate Body.
5. Paragraph 5 of Rule 18 shall be deleted and replaced by the following:
(5) Upon authorization by the division, a participant or a third participant may correct clerical errors in any of its submissions. Such correction shall be made within 3 days of the filing of the original submission and a copy of the revised version shall be filed with the Secretariat and served upon the other parties to the dispute, participants, third parties and third participants.
6. Rule 19 shall be deleted and replaced by the following:
Ex Parte Communications
(1) Neither a division nor any of its Members shall meet with or contact one party to the dispute, participant, third party or third participant in the absence of the other parties to the dispute, participants, third parties and third participants.
(2) No Member of the division may discuss any aspect of the subject matter of an appeal with any party to the dispute, participant, third party or third participant in the absence of the other Members of the division.
(3) A Member who is not assigned to the division hearing the appeal shall not discuss any aspect of the subject matter of the appeal with any party to the dispute, participant, third party or third participant.
7. The following paragraph 3 shall be added to Rule 28:
(3) When the questions or requests for memoranda are made prior to the oral hearing, then the questions or requests, as well as the responses or memoranda, shall also be made available to the third parties, who shall also be given an opportunity to respond.
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8. The fourth row of the Table in Annex I shall be deleted and replaced by the following:
Appellee(s) Submission(s) 25 12 Third Participant(s) Submission(s) 25 12 Third Participant(s) Notification(s) 25 12
43 A PPELLATE BODY ANNUAL REPORT FOR 2003
ANNEX 7
ARBITRATIONS CONDUCTED UNDER ARTICLE 21.3(c) OF THE DSU: 1997–200328
REASONABLE PERIOD OF TIME AWARDED BY THE ARBITRATOR
An asterisk (*) besides the name of the Arbitrator indicates that the Arbitrator was chosen by the parties to the dispute. A hash (#) indicates that the Arbitrator was appointed by the Director-General of the WTO.
1997
Reasonable Period of Time Matter WT/DS Number Arbitrator Awarded
Japan – Taxes on Alcoholic WT/DS8/15 Julio Lacarte-Muró # 15 months Beverages WT/DS10/15 WT/DS11/13
1998
Reasonable Period of Time Matter WT/DS Number Arbitrator Awarded
European Communities – WT/DS27/15 Said El-Naggar # 15 months, 1 week Regime for the Importation, Sale and Distribution of Bananas
EC Measures Concerning Meat WT/DS26/15 Julio Lacarte-Muró # 15 months and Meat Products (Hormones) WT/DS48/13
Indonesia – Certain Measures WT/DS54/15 Christopher Beeby* 12 months Affecting the Automobile WT/DS55/14 Industry WT/DS59/13 WT/DS64/12
28 There were no Arbitration Awards circulated under Article 21.3(c) of the DSU in 1995 or 1996.
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1999
Reasonable Period of Time Matter WT/DS Number Arbitrator Awarded
Australia – Measures Affecting WT/DS18/9 Said El-Naggar* 8 months Importation of Salmon
Korea – Taxes on Alcoholic WT/DS75/16 Claus-Dieter Ehlermann* 11 months, 2 weeks Beverages WT/DS84/14
2000
Reasonable Period of Time Matter WT/DS Number Arbitrator Awarded
Chile – Taxes on Alcoholic WT/DS87/15 Florentino Feliciano* 14 months, 9 days Beverages WT/DS110/14
Canada – Patent Protection of WT/DS114/13 James Bacchus* 6 months Pharmaceutical Products
Canada – Certain Measures WT/DS139/12 Julio Lacarte-Muró* 8 months Affecting the Automotive WT/DS142/12 Industry
2001
Reasonable Period of Time Matter WT/DS Number Arbitrator Awarded
United States – Section 110(5) WT/DS160/12 Julio Lacarte-Muró* 12 months of the US Copyright Act
United States – Anti-Dumping WT/DS136/11 A.V. Ganesan* 10 months Act of 1916 WT/DS162/14
Canada – Term of Patent WT/DS170/10 Claus-Dieter Ehlermann* 10 months Protection
Argentina – Measures Affecting WT/DS155/10 Florentino Feliciano* 12 months, 12 days the Export of Bovine Hides and Import of Finished Leather
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2002
Reasonable Period of Time Matter WT/DS Number Arbitrator Awarded
United States – Anti-Dumping WT/DS184/13 Florentino Feliciano* 15 months Measures on Certain Hot-Rolled Steel Products from Japan
United States – Definitive WT/DS202/17 Yasuhei Taniguchi # Agreement reached between Safeguard Measures on Imports parties of Circular Welded Carbon Quality Line Pipe from Korea
2003
Reasonable Period of Time Matter WT/DS Number Arbitrator Awarded
Chile – Price Band System and WT/DS207/13 John Lockhart* 14 months Safeguard Measures Relating to Certain Agricultural Products
United States – Continued WT/DS217/14 Yasuhei Taniguchi # 11 months Dumping and Subsidy Offset Act WT/DS234/22 of 2000
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